Khanom Sharifa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3289/2019

[2026] HKCFI 2476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3289 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 5 November 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 30 October 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 January 2019 (the “Notice”), refusing her application for non‑refoulement protection. 

The Applicant’s claim

2.The Applicant is a Bangladeshi national, now aged 37.  She arrived in Hong Kong on 12 April 2014 as a foreign domestic helper and returned to Bangladesh after working for about five months.  She arrived in Hong Kong again on 9 August 2015 and overstayed since 1 March 2016 after her employment was terminated.  On 10 May 2016, she lodged a non-refoulement claim by written signification.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. It was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

3.Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, she claims she will be killed by the Awami League political party (the “AL”), if refouled, because of her support for the Bangladesh Nationalist Party (the “BNP”).

4.The Board accepted that the Applicant was probably a supporter of the BNP and that she and her father were attacked by supporters of the AL.  It even accepted, with some doubts, that her father was killed and she was wounded during an altercation by AL activists in 2010.  However, it noted that the Applicant moved almost immediately after the murder of her father to Khulna and then to Dhaka where she remained for two years without incident.  Then she came to Hong Kong in April 2014 to work as a foreign domestic helper for about five months and returned to Dhaka in September 2014.  After remaining in Dhaka for a year without incident, she came to Hong Kong again.  The Board thought she would not have returned to Bangladesh voluntarily if she entertained a fear of persecution in Bangladesh.  It also noted that she did not claim protection in Hong Kong until 2016.  It rejected her explanation that she did not know what to do in that regard in light of her knowledge that she needed to regularize her stay in Hong Kong.  Essentially because of her voluntary return to Bangladesh in September 2014, the complete absence of risk of harm on her return, the lack of explanation for the delay in seeking protection in Hong Kong and the fact that she was not even a member of the BNP but a supporter only, the Board was not willing to attach any credence at all to her claim that she would face a real risk of harm on return to Bangladesh.   It was on that basis and some further necessary finding of facts that the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  Hence, it dismissed her appeal against the Notice.

The legal principles applicable to judicial review

5.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

6.At the hearing, after the above legal principles had been explained to her, the Applicant confirmed that she had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. 

7.In her supporting affirmation, she advanced the following arguments. She has a big political problem in her home country because her enemy, ie the AL, is the ruling political party.  After her employment contract was terminated she could not return to Bangladesh as she has a threat to her life there.  She said the AL is not a genuine political party, but a wing of “Indian Raw” and a terrorist party.  She loves her country but will not return as long as the AL continues in power.  Her allegations against the AL had been considered by the Board.  It was on the basis of the country of origin information (“COI”) that the Board accepted, despite its doubts, that the Applicant and her father were attacked by AL activists in 2010 and she suffered injuries while her father was killed.  However, it remains to be her case that she lived in Khulna and then Dhaka for three years without any incident.  These are finding of facts by the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.  As for her avowed intention not to return to Bangladesh as long as the AL continues in power, it has now become judicial knowledge that the AL is no longer in power in Bangladesh and the BNP is now back in power.  There is no substance in her supporting affirmation.

8.In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

9.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  it accepted the factual case as the Applicant asserted and assessed her claim on that basis. However, it could not accept that she would face any real risk of harm upon her return to Bangladesh.  It gave full reasons for its finding.  This is a finding of fact solely for the Board.  On the evidence, it was open to the Board to make the finding as it did.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

10.For the above reasons, the Applicant’s leave application is refused.

Dated the 30^th day of April 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1